Citation Nr: 0119351
Decision Date: 07/25/01 Archive Date: 07/31/01
DOCKET NO. 01-01 988 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania
THE ISSUE
Entitlement to an increase in the 10 percent evaluation
currently assigned for service-connected thrombophlebitis of
the right leg.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The veteran had active service from October 1953 to October
1956.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2000 decision by the RO
which denied the veteran's claim for an increased rating for
his service-connected thrombophlebitis of the right leg.
FINDING OF FACT
The veteran's service connected thrombophlebitis of the right
leg is manifested by complaints of swelling, relieved by
elevation, and some edema, without eczema, stasis
pigmentation, ulceration, or subcutaneous induration.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 10 percent for
service-connected thrombophlebitis of the right leg are not
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); Veterans Claims
Assistance Act of 2000 (Nov. 9, 2000); 114 Stat. 2096; 38
C.F.R. §§ 4.3, 4.7, 4.104, Part 4, including Diagnostic Code
7121 (2000).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
Service connection was established for thrombophlebitis of
the right leg by a decision of the Board in April 1962. The
RO implemented the Board's decision by rating action in May
1962, and assigned a 10 percent evaluation for the right leg
disability, effective from April 12, 1960 and a
noncompensable evaluation effective from November 1, 1961.
By rating action in June 1963, the RO assigned an increased
rating to 10 percent, effective from June 10, 1963. By
rating action in August 1967, the RO assigned a 100 percent
evaluation for the right leg disability under the provisions
of 38 C.F.R. § 4.29 from June 5, 1967, and a 10 percent
evaluation from July 1, 1967. The 10 percent evaluation has
remained in effect ever since.
VA outpatient records from August 1999 to April 2000 show the
veteran was seen various complaints, including pain and
numbness in his left foot and the great toe. In January
2000, he reported bilateral ankle edema which progressed
during the daytime but which was gone the following morning.
In April 2000, it was indicated that he was taking Lasix for
hypertension.
On VA vascular examination in August 2000, the veteran
reported that he had no recurrence of thrombophlebitis in his
right leg for many years, and that he had not required any
anticoagulation since then. He reported continuing chronic
edema, tingling in the right great toe, and a dull pain in
the right calf. He also reported that he had some type of
testing via a private provider, which the examiner indicated
was probably an EMG, regarding the tingling in the right
great toe. The veteran was advised to obtain these reports
and to send them to the RO. The examiner noted that the
veteran had chronic edema of the right calf, which the
veteran reported resolved overnight. The veteran wore TED
hose to the level of the knees, bilaterally, and was
reportedly on Lasix for his lower extremity edema. The
veteran reported a dull pain in the right calf that was
present about 30 percent of the time, or when ascending or
descending stairs. The veteran reported that he could walk
approximately 1 mile and could stand for about 2 hours
without any problems. Ascending stairs was more problematic
than descending and caused some calf pain. The veteran
estimated that he could walk up 3 to 4 flights of stairs, and
that if he sat for 3 to 4 hours, he developed pain and
numbness in his right leg. While sleeping at night, he has
numbness in the right leg from the buttock and traversing the
posterior portions of the leg to the level of the right foot.
On examination, the veteran was able to ambulate the entire
length of the hallway before and after the examination,
approximately 200 feet, without distress, significant
alteration in his gait, or use of assistive devises.
Ambulation, when viewed from the anterior and posterior,
revealed a toe-out gait with no favoring of either lower
extremity. The veteran was able to demonstrate tandem gait
without difficulty. There was no tenderness of the right
calf, and sensation with microfilament testing was intact.
There was no hair growth on either lower extremity. There
was pitting edema to the level of the mid calf, bilaterally;
right greater than the left. There was no edema or erythema
of the right calf. There was scaling of the feet,
hyperkeratotic and mycotic nails, and toes were down going,
bilaterally. Distal pulses were not palpable, bilaterally,
due to edema. The examiner noted that additional testing,
including ABI's and Doppler imaging were ordered. The
diagnoses included normal ankle brachial indexes, greater
than 1.0, bilaterally, and negative Doppler imaging for
venous disease. [The record indicates that the examiner's
diagnoses was rendered after the additional tests were
completed as it included information from the test results.]
ABI's and Doppler imaging in September 2000 showed normal
venous flow of the common and superficial femoral, popliteal,
posterior tibial, and greater saphenous arteries. There was
no evidence of resistance to the deep venous flow in the
right leg. Dorsalis pedis and posterior tibial arteries of
the right leg were normal.
Increased Ratings - In General
Initially, it is noted that during the pendency of this
appeal, there has been a significant change in the law.
Specifically, on November 9, 2000, the President signed into
law the Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096 (2000). Among other things, this law
redefines the obligations of VA with respect to its duty-to-
assist, and supercedes the decision of the United States
Court of Appeals for Veterans Claims in Morton v. West, 12
Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No.
96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order).
This change in the law is applicable to all claims filed on
or after the date of enactment of the Veterans Claims
Assistance Act of 2000, or filed before the date of enactment
and not yet final as of that date. Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart
(a), 114 Stat. 2096, 2099-2100 (2000).
In the instant case, the Board is satisfied that the duty to
assist in the development of the veteran's claims either
under the Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096 (2000) or the prior regulations
pertaining to duty to assist as set forth in 38 U.S.C.A.
§ 5107 has been complied with. By virtue of the Statement of
the Case issued during the pendency of the appeal, the
veteran and his representative were given notice of the
information, medical evidence, or lay evidence necessary to
substantiate his claim. The RO obtained all relevant records
identified by the veteran. Additionally, a comprehensive VA
vascular examination was conducted, including non-evasive
vascular studies, and copies of those reports were associated
with the file. The record is complete and the Board is
satisfied that the VA has complied with its duty to assist
the veteran.
The Board notes that the veteran indicated that he had
additional testing described as EMG studies, by a private
provider. He was advised to obtain these records and to
forward them to the RO. The veteran has not complied with
the request for the additional information. However, an EMG
study would not provide any pertinent information relating to
the vascular system, which is the underlying nature of the
service-connected disability. Therefore, as a comprehensive
vascular examination was undertaken and provides sufficiently
detailed clinical and diagnostic information necessary to
evaluate the service-connected disability, the Board finds
that no useful purpose would be served by remanding the
appeal to attempt to obtain the private medical report.
Disability evaluations are determined by the application of a
schedule of ratings, which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4
(2000). Separate diagnostic codes identify the various
disabilities. In Francisco v. Brown, 7 Vet. App. 55, 58
(1994) the Court held that "[w]here entitlement to
compensation has already been established and an increase in
the disability rating is at issue, the present level of
disability is of primary importance."
In considering the evaluation to be assigned, the VA has a
duty to acknowledge all regulations which are potentially
applicable through the assertions and issues raised in the
record and to explain the reasons and bases for its
conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
38 C.F.R. § 4.1 requires that each disability be viewed in
relation to its history, and that there be emphasis upon the
limitation of activity imposed by the disabling condition.
38 C.F.R. § 4.2 requires that medical reports be interpreted
in light of the whole-recorded history, and that each
disability must be considered from the point of view of the
veteran working or seeking work.
These requirements for evaluation of the complete medical
history of the claimant's condition operate to protect
claimants against adverse decisions based on a single,
incomplete or inaccurate report, and to enable the VA to make
a more precise evaluation of the level of the disability and
of any changes in the condition. Schafrath, 1 Vet. App. at
594. 38 C.F.R. § 4.7 provides that where there is a question
as to which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned.
Analysis
The veteran is currently assigned a 10 percent evaluation for
thrombophlebitis of the right leg under the provisions of
Diagnostic Code (DC) 7121, which provide as follows:
7121 Post-phlebitic syndrome of any etiology:
With the following findings attributed to the effects of
varicose veins:
Massive board-like edema with constant pain at
rest........................... 100
Persistent edema or subcutaneous induration, stasis
pigmentation or eczema, and persistent
ulceration............................ 60
Persistent edema and stasis pigmentation or eczema,
with or without intermittent
ulceration.............................................. 40
Persistent edema, incompletely relieved by elevation of
extremity, with or without beginning stasis
pigmentation
or
eczema...............................................................
....................... 20
Intermittent edema of extremity or aching and fatigue in
leg after prolonged standing or walking, with symptoms
relieved by elevation of extremity or compression
hosiery.................. 10
Asymptomatic palpable or visible varicose
veins............................... 0
Under these criteria, the veteran's right leg
thrombophlebitis is no more than 10 percent disabling.
Neither the outpatient records nor the August 2000 VA
examination report show chronic discoloration or persistent
edema of the right leg which is not relieved with elevation.
There is no evidence of lower extremity ulcers. The
veteran's reports of resolved swelling with elevation of the
right leg are in keeping with the criteria for a 10 percent
evaluation. Furthermore, there have not been any findings of
eczema, stasis dermatitis, subcutaneous induration, or
constant pain at rest. Accordingly, there is no basis for
the assignment of a rating higher than 10 percent.
ORDER
Entitlement to an increased rating in excess of 10 percent
for service-connected thrombophlebitis of the right leg is
denied.
Iris S. Sherman
Member, Board of Veterans' Appeals